G.K. Misra, C.J.
1. The petitioner appeared in the Pre-University Examination (Science) under the Utkal University in March, 1964, from Khallikote College Berhampur. English, Modern Indian Language (M. I. L.) and General Knowledge were the Compulsory subjects in which he had to appear. For optional subjects he selected Mathematics, Physics and Chemistry, He offered Economics as the fourth or the extra optional subject The Registration number of the petitioner in the Utkal University was 5859 of 1963 and his Roll number for the Examination was 793.
2. The petitioner secured the following marks in the Pre University Examination as appears from the true copy filed by the Registrar of the Utkal University.
'Name - Sri Pradiplal Ghose Roll - 793
1.English Paper I...34)
)99 English Paper II...45 College marks...20 2.General Studies Humanities...23)
)60 -do- Science...23 College marks...14 3.M. I. L. (Oriya)...34)
)44 -do- College marks...10 4.Mathematics...58)
)75 College marks...17 5.Physics, Theory...43)
)64 College marks...8 Practical marks...10 College marks...3 6.Economics...44)
)55 College marks...11 7.Chemistry, Theory...31)
)53 College marks...8 Practical...11 College marks...3= 21
Total ... 800 418 (sic)'
According to the Calendar of the Khal-likote College, for the year 1963-64, containing the courses of study prescribed by the Utkal University a student in the Pre-university Classes can opt for three principal optional subjects as indicated hereunder.
'Combinations of optionals available in this College
(a) * * * * *(b) Pre-University Science (256 seats)
1. Mathematics, Physics and Chemistry (Can offer Biology or Geology or Economics as fourth optional).
2. Biology. Physics and Chemistry (Can offer Mathematics or Geology as fourth optional)
3. Physics, Chemistry, Geology
(Should offer Biology as fourth optional or can offer Mathematics as fourth optional).'
The petitioner, at the time of his admission in the College opted for the first group--Mathematics, Physics and Chemistry--as his principal optional subjects and Economics as fourth optional subject. He accordingly attended lectures.
In the Pre-University Examination form prescribed by the Utkal University, the petitioner indicated Mathematics, Physics and Chemistry as his principal optional subjects and gave Economics as the fourth optional Column No. 10 of the Pre University Examination form prescribed by the Utkal University runs thus
'10. Subjects in which he/she desires to be examined:
Part I Compulsory Subjects.Part II. Optional Subjects
Extra Optional Subjects
The form thus makes a clear distinction between optional subjects and extra-optional subjects.
According to the petitioner he secured 420 marks in the aggregate out of 700 and should have been declared to have passed in the First Division, for which 60 per cent in the aggregate is required. The University treated Economics as one of the main optional subjects of the petitioner and Chemistry as the fourth extra optional subject, contrary to the Regulations of the Utkal University and the choice of the petitioner. The minimum pass marks in Chemistry are 32 per cent while that in Economics is 30. As Chemistry was treated as the fourth optional subject 32 marks were deducted from the marks secured in Chemistry by the petitioner and the total aggregate secured by the petitioner was indicated to be 418 and not 420. As a result of this action of the University acting contrary to the Regulations, the petitioner was declared to have passed in the Second Division. The action of the University is contrary to law and is in illegal exercise of jurisdiction. The petitioner, therefore, prays that the order of the University declaring the petitioner to have passed in the Second Division should be quashed by a writ of certiorari, and a writ of mandamus should be issued directing the University to declare him to have passed in the First Division, after recalculating the aggregate correctly.
3. Though notice was served on the opposite party more than four years back, no counter was filed until the matter was heard on 8-8-69. As we were prima facie satisfied with the contention of the petitioner, we gave the University an opportunity to file a counter-affidavit and apprise us of the true facts. The counter was filed by the Deputy Registrar of the Utkal University on 12-8-69. The substance of the counter may be stated as hereunder. in brief :
In 1964, a question arose as to whether a student passing in the three compulsory subjects in Part I and any three optional subjects in Part II of Regulation 14 (1) of Chapter II-A of Utkal University Regulations, Volume II, shall be declared to have passed the Pre-University Examination. The question arose in the context of a case where a candidate passed in the three compulsory subjects mentioned in Part I of Regulation 14 (1) and in three out of the four optional subjects. In that particular case, he passed in two out of the three main optional subjects and failed in the third, but passed in the fourth optional subject. The question was whether he should be declared to have passed the Pre-University Examination. The Syndicate accepted the legal advice of the then Advocate General that failure in one of the main optional subjects would not be a bar to the candidate passing the Examination, as the aforesaid Regulation did not make any distinction between the three main optional subjects and the fourth optional subject. A true copy of the Resolution which the Syndicate passed on the basis of this legal advice, has been filed in this Court as Annexure I to the counter may be extracted in full:
'RESOLUTION NO. 1397 OF THE SYNDICATE DATED 20-5-64.
Considered the recommendations of the Board of Conducting Examiners for the annual Pre-University Examination of 1964 and in this connection considered the opinion of the Advocate-General on the interpretation of the Regulations regarding the fourth optional subject--Resolved -- 1. That the opinion of the Advocate-General on the interpretation of the Regulations regarding fourth optional subject be accepted;
2. That for the purpose of determining the fourth optional subject
(a) in case of candidates passing in four optional subjects, the subject in which he has secured the lowest number of marks should be treated as his fourth optional subject,
(b) in case of a candidate who has passed in three optional subjects and failed in one of the subjects in which he has failed should be treated as the fourth optional subject
3. That the results of the Annual Pre-University Examination of 19G4 be referred back to the respective Boards of Conducting Examiners for reconsideration in the light of this decision of the Syndicate.'
On the basis of this Resolution the Syndicate examined the case of the petitioner and treated Chemistry where he secured the lowest marks as his fourth optional subject though the petitioner all through offered Economics as the fourth optional subject. A further stand has been taken by the Registrar of the Utkal University, in his counter affidavit, that even assuming that the Syndicate took a wrong view of the matter, the High Court should not interfere with its discretion.
4. The Issue arising in the case falls within a narrow compass. The question is whether the Syndicate acted contrary to the Regulations and in illegal exercise of jurisdiction in treating Chemistry as the fourth optional subject though it was never so offered by the petitioner and despite the fact that the petitioner completed the lectures in the College and appeared in the University Examination with Chemistry as a principal optional and Economics as the fourth optional.
The relevant Regulations on the point throwing light may be noticed. Regulation 2 (1) in Chapter II-A so far as relevant runs thus:--
'2 (1) Any registered student of the University may be admitted to the Pre-University Examination if he has completed, in one or more colleges for the purpose of such examination in the subject which the candidate offers, a regular course of study for not less than one academical year after passing the Matriculation Examination .....'
5. This Regulation prescribes the qualifications for admission to the Examination, as would appear from the marginal note. The conditions precedent prescribed therein are twofold; firstly the candidate must have completed the course in one or more colleges for not less than one academical year. The petitioner fulfilled this condition by studying for one academical year in the Khallikote College, The second condition is that the candidate must offer the subjects and in those subjects he must have undergone a regular course of study for not less than one academical year. The requirements therefore, are that the candidate is to select his own subjects as prescribed by the Regulations and complete the lectures. Emphasis must be placed on the expression 'in the subject which the candidate offers'. Though the University has prescribed various subjects to be selected as optionals the different Colleges might not make provision for those optionals; and where a particular optional subject is not provided for in a particular college, the candidate who takes to a course of study in that College cannot obviously select that particular optional subject even though the courses of study prescribed by the University have allowed that particular subject to be taken as an optional. All this indicates that the candidate's decision is determinative as to the subject he chooses to appear in a particular examination, provided that subject has been specified in the courses of study prescribed by the University and he has completed a course of lectures therein in the College. The Regulation gives a fair indication that the Syndicate has no option to change the optional subject offered by the candidate after he has selected the same in conformity with the Regulations.
Regulations 9 (1), 9 (2) and 14 (1) run thus;--
'9 (1) in order to pass the Pre-University Examination, a candidate must obtain --
(a) in each of the subjects inwhich no practical examination isheld: 30%
(b) in each of the subjects in which a practical examination is held
(i) in the theorv papers 30%(ii) in the Practical 40%
(c) in the aggregate 33%
(2) If a candidate has passed in the Compulsory subjects, the three Optional subjects and also in the aggregate, the marks, if any, which he obtains in excess of the minimum required for passing the fourth optional subject shall be added to his aggregate and the aggregate so obtained shall determine his division and his place in the list'.
'14 (1) The subjects for the Pre-University Examination and the maximum marks in each subject shall be as follows. (Subject to Clause (3) of the Regulation).
Part I (Compulsory)(i)EnglishTwo papers100 marks in each paper(ii)One of the following Modern Indian Languages : Oriya, Hindi, Bengali, Telugu, Urdu and Tamil
One paper100 marks If the mother-tongue of a candidateis a language not included in the above list, he shall have an alternative paper in English ofa higher standard than is required in subject (i).
(iii)General knowledge including the landmarks in World History, Indian Constitution, Civic and General ScienceOne paper100 marksPart II- Optional(iv), (v) and (vi). Three of the following subjects : - (a)MathematicsOne paper100 marks (b)ChemistryTheory80 marks Practical20 marks (c)PhysicsTheory80 marks Practical20 marks (d)BiologyTheory80 marks Practical20 marks (e)GeologyTheory80 marks Practical20 marks (f)GeographyTheory80 marks GeographyPractical20 marks (g)PsychologyTheory80 marks Practical20 marks (h)EducationTheory80 marks Practical20 marks (i)Domestic ScienceTheory80 marks Practical20 marks (j)One of the following languages -One paper100 marks (i)Sanskrit (ii)Persian (iii)Oriya (iv)Hindi (v)Bengali (vi)Urdu (vii)Telugu (viii)Tamil (ix)French (x)German and (xi)Russian (k)EconomicsOne paper100 marks (l)HistoryOne paper100 marks (m)Elements of commerceOne paper100 marks (n)Fine ArtsOne paper100 marks (i)Drawing and painting (ii)Music (Vocal or Instrumental) (o)LogicOne paper100 marks (p)Civics and AdministrationOne paper100 marks.
6. It would appear from a scrutiny of the aforesaid Regulations that the minimum pass mark in Economics is 30 per cent as no practical examination is held in that subject. In Chemistry 80 marks have been awarded to Theory and 20 to Practical. By virtue of Regulation 9 (1) (b) read with Regulation 14 (1) Part II (b) the minimum pass mark which a candidate has to secure in Chemistry Theory is 24 (30 per cent of 80) and in Chemistry Practical is 8 (40 per cent of 20), making a total of 32 for both taken together. It is on account of this difference that in the minimum pass marks between Economics and Chemistry that the point in issue arises. If Economics is taken as the fourth optional subject, by virtue of Regulation 9 (2) only 25 marks (that is 55 marks actually secured by the petitioner in Economics minus 30, the minimum pass marks in that subject) are to be added to the aggregate while, if Chemistry is taken as the fourth optional subject 21 marks (53 marks actually secured by him in that subject minus 32, the minimum pass mark in that subject) are to be added to the aggregate.
Regulation 9 (2) makes it clear that the excess of marks obtained over the minimum in fourth optional subject shall be added to the aggregate and the aggregate so obtained shall determine the candidate's division and place in the list. If Economics is taken as the fourth optional subject the aggregate marks of the petitioner come to 420 and he would be placed in the First Division; but if Chemistry is taken as his fourth optional subject, the aggregate comes to 418 and he would be placed in the Second Division, as declared by the University.
7. As already discussed the Regulations clearly lay down that the choice of the optional subjects is entirely the right of the candidate provided those optional subjects are available in the particular College where the candidate is studying.
8. Mr. Sahu placing reliance on Regulation 14 (1), Part II, contends that no distinction has been made in the 16 optional subjects indicated in that Part as to which would be the principal optional subject and which would be the fourth or extra optional subject; and as such it was open to the Syndicate to treat any, of the four optional subjects offered by a candidate as the fourth optional subject. This contention is wholly fantastic and cannot stand scrutiny. Regulation 14 (1). Part II, merely enumerates the various optionals; it does not deal with the fourth optional. The operative part of Regulation 14 (1) says that the subjects of the Pre-University Examination and the maximum marks in each subject 'shall be as follows subject to Clause (3) of the Regulation'. The Regulation indicates the three compulsory subjects and also shows, under Part II that three of the various subjects mentioned therein would be selected as optional subjects. Once three out of the subjects have been selected by the candidate as optional subjects as indicated in the Regulation, it is not open to the University to sav that those three subjects could not have been his optionals but some other subject mentioned therein which he might have offered as his fourth optional subject would be treated as such optional subject The question of a fourth optional subject is not the subject-matter of Regulation 14. That arises on account of Regn. 9 (2). The fourth optional cannot be equated to any of three main optionals: The choice of the fourth optional subject (which is in the nature of an extra optional subject) is given for a limited purpose, namely that the extra marks obtained in that subject over the minimum pass marks are to be added to the aggregate provided that the candidate has passed in the three Compulsory subjects and in the main optional subjects and the aggregate. If the candidate has failed in any one of the Compulsory subjects or in any one of the main optional subjects, and the aggregate he fails in the Examination and the question of adding excess marks obtained in the fourth optional subject does not, arise. If the candidate secures only the minimum pass marks in the fourth optional subject, no part of it would be added to the aggregate marks. Failure in the fourth optional subject will not affect his success in the Examination if he passes in the three Compulsory subjects and in the three main optional subjects and the aggregate. The aforesaid analysis arises out of the construction of Regulation 2 (1) and Regulation 9 (2) read together. No other view is conceivable. The legal advice on which the Syndicate relied was wholly misconceived. Mr. Palit contended that the legal advice was given to suit a particular case. We express no view thereon. It is sufficient to say that we are satisfied that the Resolution of the Syndicate based on the legal advice was contrary to the Regulations.
9. Placing reliance on AIR 1966 SC 707, Principal, Patna College v. K.S. Raman, Mr. Sahu contends that the High Court, in exercise of its jurisdiction under Articles 226 and 227, should not interfere where the question involved is one of interpreting a Regulation and the matter is capable of two constructions. As I have already said, the question here is not capable of two views and the only tenable view is that the subject selected by the candidate as the fourth optional must always be treated as the fourth optional and the Syndicate has no jurisdiction to treat it as one of the main optionals. The three main optional subjects and the fourth extra optional subject are altogether different in their legal character and implication after the candidate exercises his choice and one cannot be substituted for the other. The Supreme Court decision has no application to this case.
10. In the result, the decision of the Syndicate declaring the petitioner to have passed in the second Division is quashed. A writ of mandamus be issued directing the opposite party to re-calculate the aggregate marks of the petitioner in the light of the law as laid down in this judgment and to re-publish the results of the Examination in accordance with such re-calculation, assigning to him his proper Division and place in the list of successful candidates.
The writ application is allowed with costs. Hearing fee Rs. 100/- (one hundred only).
R.N. Misra, J.
11. I agree.